The Crimes Amendment Act 2003 and the Government Communications Security Act 2003 – An Interrelated History

In 1999 the Government introduced the Crimes Amendment Bill (No 6). The Bill contained, among a large number of other changes to the law, provisions relating to computer crimes. The changes proposed seemed reasonable and were designed to address some issues that had been identified by the Law Commission in its 1999 report “Computer Misuse”.

Then a new Government introduced Supplementary Order Paper No 85 which radically changed the landscape not only of computer crime by adding a provision criminalising unauthorised access to computer systems (without associated dishonest acts or intentional damage) but also addressing changes to the provisions of the Crimes Act relating to crimes involving privacy and the circumstances under which law enforcement and intelligence agencies might be exempted from the proposed unauthorised access to computer systems provisions.

In the process the potential for state surveillance, enabled by digital technology, was expanded and it also became necessary and desirable for an organisation that had been involved in intelligence gathering, the GCSB, to have statutory recognition and oversight. While the Legislature followed up on enacting the GCSB Bill – a process that took some two years – the Crimes Amendment Act languished until its enactment in mid-2003.

It has long been my view that had it not been for the addition of the unauthorised access offence in SOP 85, it may not have been necessary for the GCSB to have moved into the picture and indeed it may not have been necessary – at least at that time – for it to have had its own legislation. But in a startling example of the law of unintended consequences that seemed to have been the case.

I decided, since I had a little time on my hands, to have a closer look at the history of the two pieces of legislation and their interrelationship. I based my research on the various Bills, Supplementary Order Papers, Debates from Hansard and materials and reports I had in my own possession which I gathered at the time. The lack of on-line material from the Government prior to 2003 meant that some of my researches had to follow alternative sources. I should also add that my researches did not include any policy documents so the introduction of the GCSB Bill relies on the statements of Michael Cullen MP in Hansard when the Bill was first read.

I think that it can be inferred from the material that I have put together that the changes proposed by SOP 85 resulted indirectly in the passage of the GCSB Act 2003. Although SOP 85 set out prescriptions whereby the GCSB may be exempted from criminal liability for accessing computer systems (and these were stated as exemptions rather than authorisations) it obviously became necessary for the GCSB to have statutory recognition. The importance of this was pointed out by the Privacy Commissioner Mr Bruce Slane in his submission on the Crimes Amendment Bill (No 6) in December of 2000.

The other related issue was the way in which some of the scope of the powers of the GCSB and other authorities were extended by changes to definitions that allowed digital systems to be included in search and surveillance activities. Further enabling of such activities came into effect with the passage of the Telecommunications Interception Capability Act 2004.

I want to make it clear that in putting together this information and writing it up I am acting, as Christopher Isherwood put it, as “a camera with its shutter open, quite passive, recording, not thinking.” although I do offer some conclusions on the evidence and raise some questions on the wider issues of the nature of liberty in the Digital Paradigm and whether, with the constant disruptive change that characterises that Paradigm, our understanding of liberty may change from Jefferson’s Enlightment agrarian ideal to something else.

A further point must be made. I have incorporated a number of quotations from Members of Parliament in Hansard. Keith Locke MP features regularly. The use of his speeches or of any other Member should not be taken as an endorsement of the political views of that member or of his or her party. As I said, “I am a camera”.